• Omari said if the court allows the BBI, it may stop August elections and give new timelines to incorporate the referendum.
• He said whether the referendum can and will take place in August or anytime this year is not a simple and straightforward.
Image: EZEKIEL AMING'A
As parties wait for the Supreme Court to decide whether or not to revive the BBI, it is highly unlikely that a referendum will be held this year.
Chief Justice Martha Koome said they will deliver the judgment on notice, meaning there is no definite date and parties will have to wait for a call.
Lawyer Danstan Omari told the Star, with the law as it is and with the IEBC election timelines cast in stone, it is practically and legally impossible to hold a referendum this year.
He said if the court allows the BBI, it may stop the August elections and give new timelines to incorporate the referendum.
Politically, Omari said, if the judgment is upheld, Deputy President William Ruto team will claim victory against pushing an illegality while ODM leader Raila Odinga’s team will count their losses.
Lawyer Shadrack Wambui said the question of whether the referendum can and will take place in August or anytime this year is not simple and straightforward.
He said the timing of the judgment is important since the general election is about seven months away.
“If the court gives us a judgment date in April, then it means we will have four months and it will be practically impossible to have a referendum assuming they win, between April and August,” he said.
Constitutional lawyer Dudley Ochiel said it will be highly unlikely for a referendum to be conducted this year.
He said the country is getting into the election period and the IEBC has its attention fully focused on the preparation for general election.
“Suppose the referendum is not so popular, it would be a huge risk for any presidential candidate to sacrifice their potential of winning elections by bearing the burden of that unpopular referendum,” Ochiel said.
“What will candidates focus on? Will they be campaigning for the referendum or the general election?” he posed.
He said there are also legal questions about whether the change of 70 new constituencies can be effected now and if elections can be fairly conducted in the new constituencies.
Also, he said, there is the question of whether the IEBC would have time to make preparations to conduct elections in those new constituencies, including getting new voter registers.
“From listening to everyone, the case was no longer urgent. One gets the feeling that it’s because the referendum has become unfeasible this year,” Ochiel said.
After three days of the hearing submissions from lawyers opposing and promoting the BBI, the Supreme Court judges on Thursday retired to write the final decision that will bring to an end to the legal battle.
Both sides put up a spirited fight since Tuesday to convince the judges to either uphold or quash the Court of Appeal judgment.
The state said the appellate court erred in law by nullifying the BBI process that stopped the referendum, saying the basic structure principle is not applicable in Kenya.
The anti-BBI lawyers have insisted that the current Constitution cannot be amended under the basic structure, which they argue is applicable in Kenya.
In his submissions earlier in the day, lawyer John Khaminwa, appearing for Kituo cha Sheria, urged the court not to allow a change to the Constitution.
“There is very little to admire about our current politicians. They are jobseekers. They come with the aim of amending the Constitution because they want to be in power,” he said.
Khaminwa said some of the problems in the country are because of frivolous amendments to the Constitution.
Lobby group Muhuri said there was no public participation in the BBI process.
Lawyer Caroline Kituku said IEBC did not have simple, accessible and transparent processes for signature verification that would enhance public participation.
She argued that the process is not simple and it is hard for members of the public to verify their signatures.
“Even as advocates, we had to spend voluminous time going through the list,” she said.
She also questioned how many Kenyans have access to website and internet to make complaints if they failed to find their names on the list.
“How many have internet access and can complain to the IEBC that their names were not put (on the register) or they did not provide their signatures. How many? Very few can,” Kituku said.
(Edited by V. Graham)